WASHINGTON – Self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be sent to New York to face trial in a civilian federal court, and five other suspects will be sent to military commissions, an Obama administration official said Friday.The official said Attorney General Eric Holder plans to announce the decision later in the morning. The official is not authorized to discuss the decision before the announcement, so spoke on condition of anonymity.
Without confirming details of the decision, President Barack Obama said it was a legal and national security matter. “I am absolutely convinced that Khalid Sheikh Mohammed will be subjected to the most exacting demands of justice,” Obama said at a joint news conference in Tokyo with Japanese Prime Minister Yukio Hatoyama
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November 13, 2009
Khalid Sheikh Mohammed in NYC: Oh, this is going to go well … [Darleen Click]
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Comment by Carin on 11/13 @ 8:36 am #
What else will be announced with Teh One is away?
Comment by Darleen on 11/13 @ 8:38 am #
Carin,
and when he prefaces any statement with “I’m absolutely convinced”, I wonder what time parameters are on that expiration date.
Comment by Squid on 11/13 @ 8:43 am #
I’m just pleased that Holder is finally going after a bad guy. It’ll be good for him to have something to do besides ignore all the shenanigans his boss’ allies are up to.
Comment by meya on 11/13 @ 8:44 am #
He’s going to see the Naked Cowboy, maybe some broadway…
Comment by Bob Reed on 11/13 @ 8:54 am #
This is not a good idea, and will probably not go well…
If KSM walks, or gets off with a “time served” or some other wrist slap, Obama has to realize he’s in a heap of trouble…
These guys don’t deserve the right afforded in our civilian courts; they are prisoners of war!
Comment by Pablo on 11/13 @ 8:59 am #
Oh, come on, Bob! Clearly, when the Framers wrote the Constitution they were thinking that America’s foreign enemies that murdered thousands of us should be entitled to the very same rights under it as American citizens. That must be the case, because Obama is a Constitutional law expert, and he couldn’t possibly screw up so basic a question.
Am I right?
Comment by donald on 11/13 @ 9:02 am #
Actually Bob they are not POW’s. They are illegal combatants and have no rights to the rules regarding POW’s. This makes me want to vomit.
This is the cocksucker that beheaded Danny Pearl. I want his ass.
Not in a homo way of course.
Comment by Pablo on 11/13 @ 9:02 am #
KSM is pretty white and he’s been known to cling to his religion and his guns, er…knives. Makes sense.
Comment by B Moe on 11/13 @ 9:04 am #
Like a Viking, Don. Like a Viking.
Comment by Andrew the Noisy on 11/13 @ 9:07 am #
Barring an attack on the court, I’m not going to get all worked up over this. This case is so open-and-shut even Holder will be able to prosecute it. I expect a humdrum verdict and perpetual imprisonment.
Comment by Richard Aubrey on 11/13 @ 9:10 am #
I expect a lively trial and the participants for the prosecution and the judge will need security for years.
Unless the Islamics get to them first and the verdict is “not guilty”.
Comment by donald on 11/13 @ 9:10 am #
Bmoe, let’s go get hopped up on beer and yell at Angela.
Comment by Bob Reed on 11/13 @ 9:12 am #
“That must be the case, because Obama is a Constitutional law expert, and he couldn’t possibly screw up so basic a question.”
*SNORK” Thanks Pablo, that was the best belly-laugh I’ve had today!
And Donald, I believe you are right about the definition. Heck, under the Geneva convention they are essentially spies, by virtue of their civilian garb, and by all rights could have been executed in site!
Sentance them to working in a bacon factory for the rest of their days; under the direction of women that is…
Comment by Lost My Cookies on 11/13 @ 9:13 am #
I just heard that since the attacks were on civilians the JD decided that he should be tried in civilian court.
I say put him in civilian prison, general population. Hopefully for every convert he makes, he’ll get at least one stab wound.
Sooner or later we’ll have a Justice Department that will go after Muslim extremists the way they went after the KKK and we’ll clean up the mess then.
Comment by B Moe on 11/13 @ 9:16 am #
I gotta go take a test in Macon this weekend. Responsibility sucks.
Comment by AJB on 11/13 @ 9:17 am #
Most likely nothing will go wrong and KSM will either get life in supermax or the death penalty. That’s pretty much it.
Comment by Squid on 11/13 @ 9:22 am #
Having lived through the Moussaoui trial, I think we can guess what the KSM trial is going to be like. This guy’s been rehearsing his performance for years now, and it’s going to be ridiculous.
Comment by Roland THTG on 11/13 @ 9:22 am #
It will turn into a witchhunt on the CIA and its methods.
Comment by LTC John on 11/13 @ 9:30 am #
Jury selection for this will be a farce - the only folks they would be able to seat will be Lynne Stewarts that keep a lid on it or the opposite…
Comment by N. O'Brain on 11/13 @ 9:32 am #
I don’t want justice, I want revenge.
Comment by donald on 11/13 @ 9:34 am #
In Bmoe’s defense he will be not coming through the Big A cause he’s heading down 441.
Hence Angela is spared and I’m drinking martinis instead.
Bmoe SHOULD however see the Otis Redding exhibit at the GA Music Hall of Fame.
Comment by Pablo on 11/13 @ 9:34 am #
Debra Burlingame, who sat through the Moussaoui trial, was all but in tears this morning.
AJB, it’s going to be a fucking circus. Bet on it.
Comment by BJTexs on 11/13 @ 9:36 am #
AJB: Gee, I know I’m very comfortable with putting the citizens of NYC at increased risk on your assurance that “most likely nothing will go wrong.”
Ed Morrissey at Hot Air points out that some of the other detainees in Gitmo are still being tried my military tribunals. If the thinking is that attacks against “military targets” should get military courts then trying this pukestick in a civilian court doesn’t make a lot of sense.
I’d prefer not to increase the security risks on the citizens of NYC just to make some kind of point about criminal vs military. But all’s good, I guess, because I have AJB’s personal “most likely” assurance. Take your kids to the trial!
Comment by Jim Ryan on 11/13 @ 9:47 am #
First off, shouldn’t The Once apologize to KSM for the waterboarding?
Comment by Squid on 11/13 @ 9:49 am #
I’d be surprised if He hasn’t been sending flowers every week, Jim.
Comment by howcome on 11/13 @ 9:50 am #
A civilian court will have to throw out most of the evidence against KSM due to the way it was gathered or the fact he was waterboarded. Any statements he made while confined at GITMO will have to be disqualified due to the above. I as an American citizen would not want a trial where being waterboarded, confined at GITMO and having a made statements prejudicial to myself after all that occurred would be allowed to stand. That is why this belongs in a Military Tribunal where proper justice for the type of crimes (terrorism) can be fairly judged. Treating these guys as everyday American criminals is so stupid I can see no upside to it. Obama must know this will either end in the case be thrown or it will make mockery of the American Justice System. How can I despise an American President even more, I woke up and read the headlines.
Comment by ThomasD on 11/13 @ 9:54 am #
These trials will last long enough to charge the defendants for not purchasing health insurance.
Comment by Kevin B on 11/13 @ 9:54 am #
So a couple of years of constant moaning about how nasty those brutal Americans were to that nice Mr Mohammed is:
a) Really good for the Obama, the Dems, the MSM and the US’s image.
b) Not so good for the Obama, the Dems, the MSM and the US’s image.
Comment by geoffb on 11/13 @ 9:55 am #
A Chicago-7 remake now as NYC-5. Theater both inside the court and outside in the street. Security concerns alone should snarl NYC up. Just what the doctor ordered for “improving” the local economy.
Think of all those jobs, protecting everything and everyone there, that have been saved. All the jobs for glaziers, construction workers, to rebuild after each demonstration. So many jobs created and saved. Brilliant!
Comment by ThomasD on 11/13 @ 9:56 am #
Kevin you underestimate the Democrat-Media Complex’s ability to spin the truth and ignore the obvious.
Comment by sdferr on 11/13 @ 10:04 am #
Andy McCarthy in NRO:
Comment by happyfeet on 11/13 @ 10:07 am #
“be subjected to the most exacting demands of justice” isn’t really a very American phrase I don’t think. I don’t know what it is.
Comment by sdferr on 11/13 @ 10:10 am #
Why do you write “alleged desire” Sashal? Do you know something that calls such a desire into question as other than sincere?
Comment by B Moe on 11/13 @ 10:12 am #
I mostly think you can’t read, Sashal.
Comment by sdferr on 11/13 @ 10:13 am #
The trial of Adolf Eichmann has what to do with this trial? What makes it relevant? Were the laws and customs of the United States involved?
Who are “the authoritarians”? And what evidence would you offer to demonstrate that whoever they may be, they mistrust our courts and our democracy?
Comment by Kevin B on 11/13 @ 10:15 am #
ThomasD, I don’t doubt that the Dems and the Meeja will spin this for all it’s worth, but I don’t think anyone but the snotgobblers of this world will buy it.
As others have said, this is a no win for O! If KSM walks on what are perceived as ‘technicalities’ then it is a massive win for AQ and everyone will know it. Oh yes, they’ll say ‘victory for justice’ and some such gobbledegook, but the entire world knows what that evil bastard has done, and their respect for America, the Once, the proggs and the media will plummet.
On the other hand, if the poor tortured soul is convicted, it will be a ’cause celebre’ for proggys and terrorists the world over for years, generations, to come.
In either case, there’s no spin that can make this a win for the Once.
No win dude.
Comment by sashal on 11/13 @ 10:19 am #
Where was Eihman trial held, sdferr?
Were Israelis for or against the trial of the deathly enemy and arch criminal to be held in Israel?
Comment by sdferr on 11/13 @ 10:22 am #
Again sashal, answer the questions: what is the relevance of your question? No one here needs your infantile lessons in history.
Comment by sashal on 11/13 @ 10:23 am #
relevance?
Pathetic. Check the thread and some answers.
Comment by sdferr on 11/13 @ 10:25 am #
That is no answer at all, sashal.
What has the Eichmann trial to do with the trial of KSM, to pick the most famous of the five being brought to NYC? Were the laws and customs of the United States involved in the Eichmann trial? If so, how? And how would that (hypothetical) involvement bear on this case?
Comment by ThomasD on 11/13 @ 10:26 am #
Sashal does not need to be relevant.
Besides, why would a troll ever seek to be relevant?
Comment by LTC John on 11/13 @ 10:26 am #
Sashal, ah, I see your confusion - we are talking about people who attacked the United States of America. And the use of our civilian courts rather than a military tribunal, the security risks, political theater and such that this entails.
If you are looking for a discussion of Isreali legal history, you are on the wrong thread.
Comment by LTC John on 11/13 @ 10:27 am #
Wrong blog even.
Comment by meyacone on 11/13 @ 10:28 am #
Taking prisoners is a bad idea.
Comment by ThomasD on 11/13 @ 10:28 am #
Kevin, by transforming a martial issue into a civil criminal affair Obama has won the only victory that matters to him. As far as he is concerned all the rest is collateral damage.
Comment by LTC John on 11/13 @ 10:31 am #
#42 - perhaps he needed to take a break from denoucing some neo-con JEWZ on the Volokh Conspiracy?
Comment by sdferr on 11/13 @ 10:31 am #
ThomasD, don’t you think that this transforming is as much about stirring up political engagement or divisions even, as much as making the trial a civil criminal affair? Or maybe I should say, the rest is collateral success from his point of view, rather than damage?
Comment by LTC John on 11/13 @ 10:32 am #
See, sashal is following the “how to convince people through well reasoned argument and avoiding degenerating into an insult slinging troll” path again…right?
Comment by Will on 11/13 @ 10:34 am #
Can’t lose for big “O”. Conviction equals: increased power in civilian courts. Acquittal equals: blame George Bush
Comment by sdferr on 11/13 @ 10:34 am #
“See your pathetic relevance now?”
No, sashal, I’m afraid I don’t, if somehow you think you have demonstrated something worth knowing.
Comment by sdferr on 11/13 @ 10:38 am #
Were the Nazis still in control of Germany and three-quarters of the continent of Europe when the Israelis found Eichmann and took him to Israel for trial? Or were the Nazis utterly defeated and discredited throughout most of the world (save for a few Arab nations) at the time?
Comment by Matt on 11/13 @ 10:39 am #
Dog and Terrorist show.
I hate this president. He’s all show no substance.
Comment by sdferr on 11/13 @ 10:47 am #
By the way, I don’t know whether I’m stupid or not — I very well may be — but here I think I’m being accused of being proven stupid because I’m unable to read sashal’s mind, which strikes me as an awfully high standard for such an accusation.
Comment by No one you know on 11/13 @ 10:50 am #
Do you think the will somehow walk away or not get as severe punishment as he deserves?
Do you think that a fair trial is only necessary for certain people and not for others, and if so, how do you reconcile that with the alleged desire to spread democratic ideals around the world?
Doesn’t a fair trial pre-suppose that the indicted could walk away, you know, by being found not guilty? How do you square the first interrogatory with the second? Never mind, it looks like sashal is as stupid as he ever was.
Comment by Pablo on 11/13 @ 10:50 am #
Uh, sashal? Where the hell else would you expect the Israelis to try Eichmann? Argentina?
You are a very un-serious person.
Comment by Pablo on 11/13 @ 10:51 am #
Are you suggesting that an enemy combatant can only get a fair trial in an American civilian court?
Comment by Squid on 11/13 @ 10:52 am #
I feel your pain, sdferr. Frankly, I’m not sure sashal knows what’s going in in sashal’s mind.
Comment by Pablo on 11/13 @ 10:55 am #
Comment by LTC John on 11/13 @ 10:32 am
sashal is a master of reasoned argument, isn’t he, Colonel?
Comment by sdferr on 11/13 @ 10:57 am #
Whatever it is (that’s going on in there) Squid, it seems to be intimately bound up with some serious emotional issues, judging at least from the urgency and volume of invective that makes it to the outside.
Hey, what just happened? His “you’re stupid” comment went poof?
Comment by geoffb on 11/13 @ 11:12 am #
Think of being the family of the judge, prosecutor, jury member. Put a picture of Danny Pearl up to meditate on, forever.
Comment by BJTexs on 11/13 @ 11:22 am #
Good God, sachal! What the hell has happened to you?
Eichman was a war criminal, taken to be tried in Israel where he was found guilty and executed.
Khalid is an nonuniformed illegal combatant by the precepts of The Geneva Convention. As such, under international law, he has no rights what so ever and, as previously mentioned, could be summarily executed as a spy. Since the US doesn’t do that he should be tried by a military tribunal just as several of the other detainees will be tried. The Pentagon was a military tardget if we are going to split hairs and separate civilian attacks from military ones.
Beyond that he belongs to an international terror organization that has proven itself over the years to be quite capable at large, damaging attacks upon America and Americans. In the interest of the safety of our citizens wouldn’t it make more sense for him to be tried at a far more secure and isolated facility like … Gitmo … like the other detainees?
Eichman presented no threat of retaliatory attacks thus a civilian court was both proper and safe.
Have you has a recent head injury or are you, like others that have shown up in this blog, completely anxious and disillusioned with the reality of Obama as opposed to the fantasy that you worked so hard to sell during the campaign? open your eyes rather than spouting rigid ideology polemics.
Comment by Squid on 11/13 @ 11:29 am #
BJT, are you saying that there is — dare I say it? — nuance involved in the designations of our various enemy actors?
I thought we were incapable of understanding such stuff!
Comment by Andrew the Noisy on 11/13 @ 11:30 am #
It doesn’t matter. The Unholy Booooooooooooosh locked him, so it has to have been done wrong. It has to.
George Washington would have hung him without a thought. So would FDR. But somehow we’ve all developed Batman complexes since then.
Comment by sdferr on 11/13 @ 11:30 am #
“Have you has a recent head injury or are you, like others that have shown up in this blog, completely anxious and disillusioned with the reality of Obama as opposed to the fantasy that you worked so hard to sell during the campaign? open your eyes rather than spouting rigid ideology polemics.”
There is a theory of mind, a serious theory I think, that can read fictive ideology as a kind of brain injury, one taken in the theory as a physical circumstance as injurious as a sharp blow to the head. It is the sort of thing we mean when we joke about people drinking the cool-aid.
Comment by Mr. Pink on 11/13 @ 11:31 am #
The guy tried to plead guilty in the military tribunal. Odds are they wouldn’t have made this move without knowing he will do so again, or knowing it is a slam dunk case. They wouldn’t want the first test trial of fighting wars as a law enforcement issue to fail now would they?
Comment by sdferr on 11/13 @ 11:48 am #
“…the first test trial of fighting wars as a law enforcement issue…”
It won’t be the first, though the first was unrecognized as such when it was conducted, so it will be the first to openly and knowingly re-test a theory of warfighting we already know doesn’t work.
Comment by Pablo on 11/13 @ 11:49 am #
I can’t imagine that KSM doesn’t see the opportunity to grab the soapbox for Allah here. If they’ve made this move based on some sort of trust in these jihadis, they’re even dumber than I thought possible, which I’m not sure is possible.
Comment by Carin on 11/13 @ 12:00 pm #
Why are they doing this? So they can put the Bush administration on trial. So they can “out” folks.
That is Eric Holder’s agenda.
Comment by Spiny Norman on 11/13 @ 12:22 pm #
Good grief. This whole thing is a ridiculous circus from the start - Obama and Holder are grandstanding from their loony left base. The case against KSM will almost certainly be thrown out (even if he does try to plead guilty) because the evidence against him either cannot be disclosed in open court, or because it was obtain in a manner that civilian courts will not accept. And because he was ::gasp:: waterboarded.
Then he and the rest of his gang of merry men will be taken back to Gitmo for a military tribunal for the Pentagon attack.
With any luck, we won’t get an ultra-liberal judge who’ll order him released.
Comment by BJTexs on 11/13 @ 12:25 pm #
Hmmmm… Methinks Carin may have found the golden nugget of insight.
Comment by Matt on 11/13 @ 12:29 pm #
Gave this some more thought.
From a practical standpoint, this move makes no sense. Is putting this furry jerkoff on trial going to win us any points with muslims ? Hell no. As pointed out several times in this thread, the sheer difficulties of proving the crimes given the circumstances of the how the evidence was gathered, is going to border on impossible. And how much is t his going to cost ? We have to house him, feed him, pay his lawyers, secure him, etc. There is NO reason to do this.
Unless Obama thinks he’s going to score some political points. Is any outcome a positive for him ? Maybe KSM will blame the entire 9-11 thing on Bush ? I honestly don’t understand this idiotic decision.
Comment by Pablo on 11/13 @ 12:36 pm #
Along with closing Gitmo, it was the first thing on the agenda. Let’s not forget that these scumbags already had trials underway.
Comment by Pablo on 11/13 @ 12:37 pm #
And did anyone notice that neither Holder nor Obama have offered any rationale for civilian trials versus military tribunals? Why do you suppose that is?
Comment by EJ D on 11/13 @ 12:42 pm #
Hmm, methinks the first order of business for any competent defense attorney would be a request for a change of venue. I mean, who thinks that an impartial jury can be found in NY?
Comment by Spiny Norman on 11/13 @ 12:51 pm #
The faculty and student body at Columbia University, perhaps?
I’m sure they could be very impartial…
Comment by stuiec on 11/13 @ 12:59 pm #
Doesn’t matter. What do you suppose the international outcry will be if a Federal civilian court declares that there’s no viable case against KSM? Is it just possible that there will be a worldwide demand that he be released to prove that, in Obama’s phrase, “America lives up to its values” — like innocent until proven guilty in a court of law?
The fact that KSM’s permanent detention or execution is vital to the national security interests of the United States won’t enter into it any longer. The propaganda point will be made: America ignores its own system of justice whenever it’s convenient.
It’s pretty clear that the decision to try these guys in Federal court is just another piece of the apparatus Obama and his handlers are building to tear down the United States and permanently cripple us economically, politically, and militarily. Who they are doing it for is still an open question.
Comment by stuiec on 11/13 @ 1:01 pm #
I have a kid at Columbia. She would be a decent choice for the jury.
But since she’s in a joint degree program with the Jewish Theological Seminary, she wouldn’t make it through voir dire.
Comment by Bob Reed on 11/13 @ 1:05 pm #
After the ACLU lawters take the case, and expose as many intelligent gathering mechanisms as they can as well as trot out the Torture! meme repeatedly, it will submerge into the multi-year circus it’s meant to be…
Make no mistake about it. This high visibility show trial is a carefully calculated present to the nutroot left. It will allow them to prattle on about how eeeeevolll America is for years, and if they’re successful, serve as the “comeuppance” they’ve felt that America has deserved for years…
Comment by Squid on 11/13 @ 1:14 pm #
Given that NYC has driven out almost a million of its residents since 2001, and replaced them with new arrivals, finding jurors should be a piece of cake.
Comment by SBP on 11/13 @ 1:27 pm #
The guys at Hillbuzz take this one on.
Comment by B Moe on 11/13 @ 2:12 pm #
I did. I figured they are a bunch of treacherous, incompetent buffoons.
Comment by Squid on 11/13 @ 2:14 pm #
Honestly, Moe, how long have we been arguing that they lack any awareness of unintended consequences?
I don’t think meya is a very good listener.
Comment by B Moe on 11/13 @ 2:22 pm #
I keep weighing the evidence, and so far this is what I come up with,
Evidence that Obama is not an idiot: Harvard Law Degree.
Evidence that he is an idiot: Everything else he has done or said.
Seems pretty overwhelming, really.
Comment by sdferr on 11/13 @ 2:30 pm #
There is an Alinsky-esque feel to the whole thing, isn’t there? Performative rabble-rousing on behalf of the jihadis pressed forward right from the seat of the American Justice system. Awesome.
Comment by Jeffersonian on 11/13 @ 2:35 pm #
Good thing we Mirandized KSM upon arrest.
Comment by Joe on 11/13 @ 2:38 pm #
Welcome to the circus.
We know Bush will be blamed because waterboarding compromised the confessions. That Obama/Holder are doing this is less about right or wrong about that issue (I was personally against it) but about further embarssment of the GOP and to give Obama cover on his pledge to close Guantanamo. But I worry this will backfire badly on the whole country, giving KSM and others the opportunity to take advantage of the situation.
Ultimately, they are not U.S. citizens, not entitled to trial and protections of civilian courts (they are entitled to some due process but not the same due process you and I would get), and the precident of all of this is very bad. The cost of this will be at a minimum tens of millions of dollars.
Comment by Joe on 11/13 @ 2:40 pm #
I want to go back to the good old days.
Originalism and all of that.
Comment by sdferr on 11/13 @ 5:24 pm #
Former Atty Gen Mukasey on the decision:
http://tinyurl.com/ycrhug5
Comment by sdferr on 11/13 @ 5:58 pm #
For comparison, here is Atty Gen Holder’s statement and press conference. I listened reasonably carefully, I think, and I didn’t hear a rationale given to fully explain this decision to the American people. Holder talks about a protocol developed to distinguish what cases to hold in civil courts and what cases in Military tribunals, but he never gives any detail. He simply says, go online and read the protocol. Or am I missing something he said that explains the rationale and answers the questions Atty Gen Mukasey raises?
Comment by ghost707 on 11/13 @ 6:37 pm #
Exactly, there really can be no other explanation. It coincides well with Obama’s world apology tour, he gets to take down Bush, Cheney, the U.S., the CIA and whoever else they can throw into the mix.
It provides a distraction from the death spiral our economy is in.
It also reveals who Obama considers to be his real enemies.
This administration is on the verge of treason.
Comment by Pablo on 11/13 @ 9:05 pm #
No. Best I can tell, it should please our friends around the world and restore our good standing, yadda, yadda, yadda.
Did you happen to catch him in Japan? Along with the usual crapola, he talked of how he was going to repair and improve our relationship with the Japanese. Are you kidding me? Like we haven’t been getting along quite nicely with Japan?
Comment by Jeffersonian on 11/13 @ 9:40 pm #
sdferr 90/91, it’s becoming clear that the adults are no longer in charge here. These prosecutions are going to be unending fiascos.
Comment by Pablo on 11/13 @ 9:41 pm #
Krauthammer. And again.
Comment by JD on 11/14 @ 6:46 am #
Meya/RD has a crush on KSM’s hairshirt.
Comment by Rusty on 11/14 @ 7:03 am #
#92
pablo. That’s Obama code for he’s going to throw S. Korea and Taiwan under the bus.
Comment by sdferr on 11/14 @ 10:50 am #
John Hinderaker addresses somewhat briefly AG Holder’s stated yet inadequate rationale for trying KSM et al in NYC. Hinderaker reads the logic Holder uses as an invitation to jihadis to see to it they do their murderous acts on the soil of the United States.
Comment by sdferr on 11/15 @ 12:44 am #
One of Maguire’s funnier posts of late.
Comment by Noah Nehm on 11/15 @ 1:59 pm #
“What could go wrong?” That’s what’s being asked now. Once the trial is under way, the question will become “How were we to know?”